YouTube dances the copyright tango

news analysisIf Robert Tur has his way, YouTube will soon have its day of reckoning in court.

Tur, a helicopter pilot and journalist, accused the company in a recent lawsuit of encouraging people to steal copyright material. Tur's video of the 1992 Los Angeles riots appeared on YouTube and was viewed more than 1,000 times, according to the suit, filed in a Los Angeles federal court. YouTube said Tur's claims are "without merit."

For people who follow the growing business of video-sharing Web sites, the only real surprise about the suit is that it took so long for someone to drag YouTube or one of its ilk into court. More than 150 companies that host user-generated video on their sites have cropped up in the past year, and many of them don't prescreen the material their users put up (though most, including YouTube, include a prohibition against copyright infringement in their user agreement). Too often, critics charge, the rights to those videos are owned by someone other than the poster.

"I love the YouTube service," said Steven Voltz, an amateur video maker who says multiple copies of a video he created were posted on the site against his wishes. "But I think their process to remove copyright materials isn't easy, and that is very convenient for them."

There are laws that are supposed to cover this sort of thing. In fact, the Digital Millennium Copyright Act should define a company's obligations regarding copyrights, and YouTube says it goes out of its way to follow those rules. But legal experts wonder if the courts will ultimately have to decide how the DMCA and other laws apply to this new market.

That could be an unnerving possibility to the fledgling video-sharing sites. Many are just starting to figure out their business models, and getting dragged into expensive legal tussles or being forced to implement onerous copyright-protection procedures could snuff out a new kind of business just as it's starting to get traction.

"We expected a lawsuit to come sometime," said Tom McInerney, CEO of Guba, a video-sharing site based in San Francisco. "Our feeling is that companies are going to have to make more of an effort to go above and beyond the (law) to ensure copyright material doesn't end up on their Web sites. But what we don't want is for the liability to the Web sites to be so high that it closes down public forums."

Critics have pointed to this as an example of how YouTube has profited from copyright infringement. A relatively obscure site until that point, it received national attention from the hubbub with NBC. YouTube, however, which quickly took the clip down after NBC protested, points to its handling of the incident and others like it as an example of how the company is going to great pains to make sure copyrights are respected.

"We have been told by many dozens of content owners that we are by far the most cooperative and responsive of the video-sharing sites," Zahavah Levine, YouTube's general counsel, said in an e-mail to CNET News.com.

So who's right? For now, YouTube is standing on solid legal ground, according to several legal experts who said that YouTube is protected--under the same federal law that covers other online services such as Craigslist, eBay and Yahoo's GeoCities--from liability for copyright violations its customers may commit.

But intellectual-property attorneys also see areas where YouTube risks butting into the DMCA. For example, the law specifically prohibits a Web site from profiting from copyright material. Recently, ads have begun appearing on YouTube alongside individual video clips.

"They hadn't done this before," said John Stickevers, an intellectual-property attorney at the law firm Bromberg & Sunstein in Boston. "The law states that you can't receive profits directly attributable to the infringing content. I think this would make it much harder for them to make an assertion that they weren't profiting."

Levine discounts this concern because "to date, YouTube has never sold an ad against an individual video."

But there's a larger question of making nice with the customers. YouTube and competitors risk alienating the people who produce some of the best homemade videos, the life blood of video-sharing sites, said Voltz.

Voltz is an attorney, co-creator of a well-known video clip called the "The Diet Coke & Mentos Experiment" and a rather irked man who believes the unauthorized appearance of the Mentos clip on YouTube and other sites cost him money--$28,000, to be exact.

The losses are equal to what Voltz and partner Fritz Grobe made by posting their clip at the video-sharing site Revver, which shares advertising revenue with clip makers.

The video of the two men creating a whacky fountain through the volatile mix of Mentos and a carbonated beverage was viewed 5 million times. The number would have been twice as high had fans not posted copies of the video on Google Video and YouTube, which siphoned traffic away from Revver, Voltz claimed. YouTube and Google don't share ad dollars.

While it's difficult to say if Voltz' figures are accurate, there's no question he has scrapped with YouTube, though he hasn't taken any legal action. YouTube removed the clip after Voltz complied with the company's "takedown" process, he said.

But that didn't stop others from posting new copies of the Mentos video soon after. The video skyrocketed into YouTube's "Most Viewed" video section. Yet, the company told him that if he wanted the copies removed, he'd have to go through the entire process again for each clip. To keep the material off the site in the future, Voltz said, he was also informed that it was up to him to monitor the site.

Voltz also sent Google a written request to take down several copies of his clip that appeared on Google Video. Google said early Monday that the company complied with the request and pulled several copies of the Mentos clip. Yet, a copy of the clip was still available on Google Video as of Friday.

"We work to remove any content that infringes copyright as quickly as possible," said a Google spokeswoman. "We will continue to remove videos in compliance with DMCA."

YouTube said it removed two clips at Voltz's request and invited him to use a software tool that helps locate video clips. It was designed to assist copyright holders in monitoring the site. Levine said he refused.

YouTube's lawyer said she believes the company's takedown procedure is the best in the business.

Another way YouTube said it has tried to prevent unauthorized copies from reappearing is a "hash," or unique identifying mark for every video file removed at the request of a copyright owner. Levine said this blocks the exact same file from reappearing on the site.

Nonetheless, at the time of this writing, a copy of the Mentos video remained on YouTube and had been viewed more than 100,000 times.

"I have no problem with the people who posted the clip," Voltz said. "They were just fans. But when I wrote to YouTube and Google to remove the video, that's when I started to get frustrated. There's got to be a system where when we say 'Please don't post our content,' they make sure it doesn't go up."

From a legal standpoint, Voltz' complaints are moot, according to Fred von Lohmann, an attorney with the Electronic Frontier Foundation.

He says the law does not require YouTube, Craigslist or eBay to be responsible for policing sites. More than 50,000 videos are uploaded to YouTube every day, and none of these sites could possibly verify the legitimacy of every post. The sites are responsible for removing unauthorized copies. Copyright holders are responsible for notifying the sites.

"That's not any different than the real world," said von Lohmann, pointing out that music companies and clothing manufacturers must walk the aisles at flea markets and swap meets to search for copyright violators.

What strengthens YouTube's claims are the moves it's made to prevent unauthorized material from being posted to its site. First, the company only streams content, an approach designed to prevent videos from being downloaded (though some people have developed work-arounds). YouTube has also limited video length to less than 10 minutes, a move meant to discourage people from uploading entire TV shows or movies, he said.

And more changes are anticipated, according to Lohmann, who added: "I expect that YouTube will no doubt improve their notice and takedown process as well."